Spewing Over Systemic Failure

Before getting to the beef of this post, I ask that hotter heads cool. There have been a few posts lately about issues raised by Nebraska federal judge Richard Kopf, and some readers disagree strongly with Judge Kopf’s views and show no reluctance saying so.

A minute later in the same post, he states:

So rather than using this as an opportunity to snarl and let the judge know how much you hate, try to see this as an opportunity to make a dent in an attitude that could use a more persuasive tone. Someone’s life may depend on it someday, and that’s more important than your having a chance to spew.

My post isn’t about Judge Kopf. It is, in a word, about “spewing.” And, as the article title would indicate, it is about spewing over the systemic failure of our judicial system, our prosecutors, our law enforcement systems, and, essentially, our society. We have created a mess. And “spewing” is the least messy result.

One reason I don’t blog as much as I used to is that the longer I’ve been practicing law, the more I’ve come to believe that there is a systemic failure which I am not at all certain is curable. This has led me on more than one occasion to “spew.” Without exempting other courts, nowhere is this more true than when it comes to juvenile law courts.1

Nor do I really regret taking this position. If you were a non-cowardly ordinary law-abiding citizen walking down the street, and you saw someone — I’m not talking about the uniformedcriminalshere,whobeatchildren, oftenwithimpunity, but one of the ordinary sort — beating the crap out of a small child, you would not “try to work within the system” to get them to stop. You would not stand there, using mere words in a vain attempt to “persuade” the assailant to stop beating the crap out of the child.

No, and you would not even just “spew.” You would intervene with whatever force was necessary to stop the attack.

Yet, at the same time, Scott is obviously right. I haven’t asked him, but I suspect he might think that my analogizing from the “ordinary criminal” beating the crap out of a child on the street to what the legal system does is, as the courts like to say in their whitewashing opinions, “inapposite.” I know a lot of other people think that way.

And that’s why I haven’t been writing as much.

You see, the thing is — as you should have guessed by my comment about seeing Scott as a long-distance mentor — I have a lot of respect for Scott Greenfield. I believe, and I have told him, that I would be a much better lawyer if I’d had the ability to work closely with someone like him from the beginning of my legal career. Not to get too far astray from my topic, but Scott has what Aristotle called ethos, or the ability to convince because of the character of the author.

Because Scott possesses ethos, though I am not otherwise convinced, I have felt the need to at least try to restrain myself from “spewing.”

Because I have been trying to restrain myself from spewing, I have found it hard to blog. Whenever I start to write about something that I think needs to be talked about, the bile begins to boil, and I start to spew.

My experience — I am in courtrooms in California almost every day of the year — is that the system is a complete failure at what it is supposed to be doing. In fact, it is worse than a failure, because it is creating the very thing that it should be trying to prevent: a lawless society.

You see, no one really needs me to say that “if the government will not follow its own laws, neither should anyone else.” It’s just the natural consequence of an arbitrary system whereby a particular group of people — judges, police officers, prosecutors, politicians, the oligarchs of modern America — lords it over the rest of us. It is what happens as people chafe under those who believe they are our “Overlords.”

That attitude affects virtually every aspect of our society these days. It impacts drivers who, seeing that the officer is too busy trying to get home from work, have no fear of breaking the speed limit themselves. What’s he going to do? Stop them? Hell no! Can’t you see he’s in a hurry to get home? Other “minor” crimes go uninvestigated and unpunished because cops are too busy harassing minorities to worry about your car having been broken into. House burgled? Report it online; most of the time the cops just can’t respond. If you ask me, the disrespect for law endemic in our society today is responsible even for things like the economic shutdown. Why do I say that? Because “Obamacare” as the law — passed by the legislative body, upheld by the United States Supreme Court — is unassailable. But a few Representatives don’t like that it became the law, so they are willing to shut down everything until they get their way.

We are supposedly a nation “ruled by laws, not men.” When a few men shut down an entire nation because they don’t like a law, well….

Our courts are no better. Returning to the situation in the juvenile courts, where I spend about 30-to-40-percent of my time, as various parts of my caseload, the market, and the work at the District Attorney’s Office fluctuates, it’s as if we’re deliberately working not to rehabilitate — which is the statutorily-defined mission of the juvenile courts — but to create an ongoing class of people who will never escape exploitation, and who will have little choice, if they are to survive, but to commit more crimes.

Recently, I represented a 17-year-old girl who had never been charged with any crimes previously, who made a stupid mistake. I knew it. Everyone else knew it. She knew it. So she intended to admit to her wrongdoing, take advantage of a deferral program that would allow her another chance at a crime-free slate if she stayed clean and demonstrated that she was rehabilitated for one year. I made the mistake of wanting to be sure she was fully informed about the program, rather than have her admit — even for Deferred Entry of Judgment purposes — on the day of her arraignment, when I first learned she was eligible for DEJ. We told the judge there would probably be a resolution at the next court hearing, but that I wanted to fully explain DEJ to make sure she made an informed decision to participate. But when we returned, the prosecutor filed — while I was telling the judge my client wanted to make a DEJ admission — an Amended Petition. The Amended Petition alleged a strike.

DEJ was no longer an option. Nor can she seal that record when she turns 18. Not even if she really did learn her lesson, and never commits another crime in her life, will she be free of that record.

Maybe she’ll still be able to realize her dream of becoming a nurse. Maybe.

But if her record means she cannot ever find a decent job….

That same week, I represented a 13-year-old with mental health issues. From looking at him, I’d guess he’s about four-and-a-half feet tall; a pudgy little boy. When he gets upset, he curses. He says some vile things. He throws temper tantrums like someone ten years younger than he is. And because he cussed at a teacher, and told a school security officer he would throw a chair at him and break his glasses right in the middle, he was charged with a felony assault on a school officer. The charge was absurd. And there was no likelihood of any harm coming to the officer.

Set aside the fact that when I was a kid, this would have resulted in no criminal charges — maybe laughter, but no criminal charges — my efforts to have it reduced to a misdemeanor were initially rebuffed. On the day of trial, the prosecution finally agreed to a misdemeanor admission. Even at that, it’s ludicrous. But the way California law works, the likelihood that the officer would actually be hurt is not relevant. In some alternate universe, he could have been hurt. Nor does it matter if the officer was not frightened: his subjective belief concerning “the threat” is likewise irrelevant. Only “the intent” of the child to interfere with the officer’s duty matters.

And if we need more proof that the system is not built for rehabilitation? The court, in that same case, ordered the Probation Department to take him for a mental health assessment that had been scheduled prior to his incarceration. This order was not followed. The only consequence that followed was that the minor’s case with the mental health department was closed.

It’s just a guess on my part, but I’m betting getting that kid mental health care would go a long ways towards rehabilitating him.

Meanwhile, in twenty-three states, children as young as seven can be charged as adults. Every year a quarter-of-a-million children are. Any given night, 10,000 children are held in adult jails and prisons, where they are frequently locked down for 23 hours a day in order to keep them safe.

I try not to “spew.” After all, while my “spewing” has so far created some converts — convinced more privileged white people that things are as bad as I say they are — it hasn’t done much to fix things. The failures of our system are like the waves of the ocean. My job these days is simply to rescue as many starfish as possible.

Yesterday, after a quite long argument — one so long that several times I nearly gave up — a judge said, “I am reluctantly convinced by your argument.”

So, I don’t know. I’m sure Scott is right. And he carries the ethos to sway me. I could not help but notice, as I wrote this post, and linked in old articles I’ve written, that nearly every one of them contained at least one sentence that read: “Scott Greenfield says….”

But I hope Scott, too, understands how hard it is not to need to “spew” every now and then.

As I said, it’s the least messy outcome of a systemic failure.

Endnotes:

There is no real juvenile law anymore. We make it up as we go. If we’re really good at moral suasion and — don’t forget the and — lucky, we get the courts to do less harmful things. But that has everything to do with our abilities at moral suasion and (more importantly?) luck, and pretty much nothing to do with the law. [↩]

Comments

Of course I understand that desire to spew. We all feel the same frustration, that we are participants in a system that is fundamentally flawed and does grave harm to many. I could go on, but you already have and saved me the trouble.

So why do I resist what appears to be the only course of conduct left? Because we fight one person at a time. We do save a life here and there, and that’s one more life saved than there would be without us. It may not be much, but it’s far better than nothing. And to the person saved, it’s huge.

When I urged people not to spew at Judge Kopf, it was with the idea that one day, maybe next week, maybe next year, something he read today will pop into his mind moments before he pronounces sentence. Instead of antagonizing him, confirming his bias, affirming his resolve to impose life sentences, he will instead think to himself, “this sentence is just too much,” and not impose it.

If that happens, and I don’t know that it will but I also don’t know that it won’t, we will have saved one more life. That makes it worthwhile. The spewing is mostly cathartic, as nobody’s mind is ever changed by spewing. But if we have the opportunity to save a life by giving up a little catharsis, then that’s what we must do.

Obviously, I have problems with “not spewing” from time to time. It’s frustrating. I mean, heck — I just got off the phone with a DDA who, knowing she has my client “cold,” with witnesses, unassailable admissions, etc., could not be convinced that one felony is enough. The second felony will add nothing to his punishment. But “I spoke to my supervisor, and we have to have it.” In a court where we aren’t supposed to be keeping score; we’re supposed to be trying to rehabilitate.

In the long run, no one — not even my client — is going to lose sleep over this, in that it’s purely symbolic overkill.

But it is symbolic overkill.

And I just can’t get used to that, and the concomitant refusal to see how such things are detrimental to the work of preventing future crimes.

When I’m in court, I know that’s not the proper forum for spewing. (Although I did once suggest that I was surprised at the DDA’s inability to agree with the court and three CDLs on a reading of the law because, as I pointed out, “to get into law school, there is a requirement that we be able to read, and once there they teach us how to do legal research.” That was probably spewing.)

In court, however, I generally aim to try to get others to see the illogic of whatever I’m arguing against, without spewing.

I’m pretty sure I told you once that if we don’t let go of the outrageous, we make ourselves crazy and burn out. A little spewing is good for the soul, not to mention mental health. Too much and we just implode. It’s not pretty.

We don’t let go because it’s principled or isn’t worthy, but because no one can survive too long at this job otherwise.

Spewing is what happens when one speaks with such passion that their words just slightly sprinkle across the face of the listener. I don’t have a problem receiving a few drops of overflow spit now and then. And to both of you, whether spewing or quietly going about your day trying to make this place a bit better, for someone, you educate. You educate people like me. Maybe spewing is how passion is spread. Just like an STD.

I’m more of a hothead than Scott, I think, but I try to control my spewing so that, well, take today for instance.

We were in the office several of us meeting to discuss how best to convince a court that the prosecutor’s position on a case was wrong. The prosecutor is wrong, but it’s going to be a very tough sell.

I did a lot of cursing, said many intemperate things, at one point offered an argument that, while absolutely correct and to the point would have been guaranteed to get the court’s back up and drop our already limited odds of prevailing on the point about which we were right even further.

In that context, the catharsis of spewing was appropriate. In other contexts (say doing it in front of the court) would be (or could be, which leads to the same conclusion) counterproductive. So I don’t do it there.